Forensic Neuropsychology Introduction to the Legal System May 25, 2006.

Forensic Forensic NeuropsychologyNeuropsychology

Introduction to the Legal Introduction to the Legal SystemSystem

May 25, 2006May 25, 2006

Law and Mental Health Domains of interaction

– competency– criminal responsibility– mental injury– juvenile, family matters

Mental health professionals as experts Law-mental health organizations

– American Psychology-Law Society (APA Div. 41)– American Academy of Forensic Psychology

Lawyer-Psychologist InteractionsLawyer-Psychologist Interactions

Training Issues– few psychologists with specific legal training– few lawyers knowledgeable about psychology

Attitudinal Differences– emphasis on civil liberties vs. trying to help

Free-Will vs. Determinism Simple vs. Multiple Causation

When Worlds CollideWhen Worlds Collide Psychologists and attorneys often

operate according to different philosophies

Psychologists and attorneys frequently use evidence differently

Psychologists and attorneys often have different ideas about causation

Psychologists and attorneys operate according to different rules

Paradigm ConflictsParadigm Conflicts Free Will vs. Determinism

– can’t differentiate behavior which is “forced” or “overborne” vs. freely chosen

– example: “voluntary” behavior and the law of effect

– example: “voluntary” intoxication

Probability ConflictsProbability Conflicts Psychological “proof” is probabilistic, rarely

absolute Legal “proof” is probabilistic, then absolute

– Preponderance of evidence (51%)– Clear and convincing evidence (75%)– Beyond a reasonable doubt (95%)– After burden is met, decision is binary and

absolute (absolutely guilty, absolutely liable, etc.)

Definition of Expert Witness

Individual who, by nature of education, experience, or training, is qualified to render opinions that will assist the trier of fact (i.e., judge, jury) in reaching an appropriate decision in the legal matter at hand. Lay witnesses are allowed to testify only as to their experiences (perceptions, observations, memories). Expert witnesses can testify as to opinions.

Adapted from FRE

“In this age of science, we must build legal foundations that are sound in science as well as in law. Scientists have offered their help. We in the

legal community should accept that offer. We are in the process of doing so.”

—Associate Justice Stephen Breyer “Introduction” in Reference Manual on Scientific Evidence, Second Edition (Federal Judicial Center, 2000)

Scientific Evidence and ExpertsScientific Evidence and Experts Differences between clinical and scientific

“opinions” (wisdom v. fact, others?) Scientific Evidence Standards:

– 1975: Publication of Federal Rules of Evidence– Before 1993:

» Frye v. U.S. (1923 Appellate ruling): the “general acceptance” standard (e.g., Newton’s law vs. moon-behavior relationship)

– After 1993:» “Supreme Court Trilogy:

Daubert v. Merrell Dow Pharmaceuticals (1993)-evidence standards General Electric Company v. Joiner (1997)-deductive process Kumho Tire Co, LTD v. Carmichael (1999)-not just science, but also

technical

Frye StandardsFrye Standards Frye-1: Fundamental scientific

principle or discovery Frye-2: The technique used for

applying the fundamental scientific principle or discovery

Frye-3: The technique’s specific application on which the expert testimony is to be based

Daubert v. Merrell Dow– Reasoning or methodology underlying testimony

must be “scientifically valid”– Judge as “gatekeeper”– “Daubert Criteria” for admissability

» Whether theories or techniques on which testimony rests are based on a testable hypothesis

» Whether the theory or technique has been subjected to peer review

» Whether the technique has known or potentially known error rate

» Whether the method/theory is generally accepted in the scientific community

– Discussion point: What are the implications of a “generally accepted” standard?

General Electric v. Joiner Reinforced gatekeeper function of trial judge Upheld trial court’s refusal to admit certain

testimony because it was not “relevant” Thus, not just reliability, but relevance as

a standard “[N]othing in either Daubert or the Federal Rules of Evidence

requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit [personal opinion] of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”

Kumho Tire v. Carmichael Extended “expert” testimony beyond scientific

evidence to all expert testimony based on “skill-experience-based observation”

Four Daubert criteria may be relevant, but are not essential; other factors may be operative in the particular case

Afterwards, Rule 702 of FRE modified: If scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods,and (3) the witness has applied the principles and methods reliably to the facts in case.

Clinical Levels of Inference in Clinical Levels of Inference in Expert TestimonyExpert Testimony

Describing behavioral observation (“he was yelling”)

Inferring a general mental state (“he was disinhibited”)

Fitting the mental state into a theoretical construct (“his behavior was consistent with a frontal syndrome”)

Diagnosis (“his behavior suggests a personality change due to organic brain damage”

Levels of Inference (cont’d)Levels of Inference (cont’d) Relating the formulation to legally

relevant behavior (“at the time of the offense, he was unable to control his violent impulses”)

Elements of the ultimate legal issue (“Although he understood right from wrong when the offense committed, he couldn’t control his behavior because of brain damage”

Ultimate legal issue (“he was insane at the time of the offense”)

What is law?What is law?

“a principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged”

four main elements:– rule of conduct– enforceable– reasonable certainty– enforcement through the courts

Types of LawTypes of Law Constitutional Law: overarching; establishes

other types of law; most important constitutional amendments:– 5th: privilege against self-recrimination– 6th: right to counsel– 14th: right to due process under the law

Statutory Law: established by legislature (often at state level)– some statues made up by more specialized bodies (e.g.,

DHHS)

Types of Law (cont’d)Types of Law (cont’d)

Case Law: decisions made by judiciary and used as precedent (e.g., Frye, Dusky)– not just interpretation, but makes suggestions

(e.g., when law is found unconstitutional) Administrative Law: rules and

regulations constructed by executive branch

Basic Structure of Court SystemBasic Structure of Court System

Basic elements: legislature (‘makes law’), executive (‘enforces law’), judiciary (‘interprets law’), but there are exceptions

Criminal law: handled by states, unless a federal crime – interstate cimes

– offenses targeting federal official

– violations of civil rights law

– offenses on, or involving, federal property

Classifications of Law

Criminal vs. Civil:– criminal: state v. individual– civil: individual v. individual (contracts,

property, torts, wills) Substantive vs. procedural:

– substantive: rights, duties/responsibilities– procedural: how substantive law is applied

Criminal Law

“Crime” is any act or omission of an act in violation of a public law

Levels of criminal activity– Felony– Misdemeanor

States develop criminal statutes; but there is a “Model Penal Code”

Civil Law

Commitment Guardianship Wills and probate Tort law

Basic Court Structure (cont’d)Basic Court Structure (cont’d) Federal Courts

– Trial court: district court is trial court (Florida has 8 districts)

– Appellate court: 2 levels: Circuit Court of Appeals (Atlanta; one of 12); US Supreme Court

State Judicial System

– Trial court:

» 2 levels of general jurisdiction trial courts (minor, major criminal/civil)

» special jurisdiction courts (“juvenile court”, “divorce court”)

– Appellate court: 2 levels: District Court of Appeals, State Supreme Court

Types of Judicial ProceedingsTypes of Judicial Proceedings

Criminal: beyond reasonable doubt; burden on prosecution

Civil: preponderance of evidence, burden on plaintiff

Administrative: clear and convincing; burden on plaintiff

‘Quasi-Criminal’: involving significant deprivation of liberty (e.g., commitment); clear and convincing evidence

Basic Principles of Psychologist-Attorney Interactions

Understand the legal system Practice good neuropsychology/clinical

psychology Adhere to ethical principles Be courtroom familiar/saavy

Greiffenstein & Cohen, 2005

Phases of Attorney-Psychologist Interaction

Preassessment phase– What’s the case about?– What’s my role?

» Fact witness» Expert witness» Litigation consultant

– What’s the time-frame?– Availability of the plaintiff/defendant?– Fee schedule

Greiffenstein & Cohen, 2005

Phases of Attorney-Psychologist Interaction (cont’d)

Assessment Phase– Review of outside records– Direct interview– Collateral report– Neuropsychological testing– Specialized testing

Greiffenstein & Cohen, 2005

Phases of Attorney-Psychologist Interaction (cont’d)

Report-writing– Differences between clinical and forensic

reports (see Greiffenstein & Cohen, 2005, p. 59)

Phases of Attorney-Psychologist Interaction (cont’d)

Trial Phase– Discovery

» Interrogatories» Depositions» Records exchange

– Admissibility (see previous discussion)– Deposition/testimony

» Qualification» Direct Examination» Cross-Examination

Post-Trial Phase

Greiffenstein & Cohen, 2005